Key published decisions applying Section 35 FOI Act
The applicant sought access to documents concerning complaints made to the Department of Family Services (Department) about the applicant and the identity of the complainant. The Department issued a notice under section 35 of the FOI Act, to neither confirm nor deny the existence of the documents sought on the grounds that such documents, if they existed, would contain exempt matter under section 42(1)(b) of the FOI Act.
The Information Commissioner considered the normal response should be to either acknowledge that no relevant documents exist, or to acknowledge the existence of requested documents which contain matter claimed to be exempt under sections 36, 37 or 42, and justify the claims for exemption. Section 35 should be reserved for use only where special circumstances make its use necessary or appropriate. 
An applicant is necessarily disadvantaged in a review of an ordinary refusal of access decision. The extent to which meaningful submissions can be made about the exempt status of matter is affected by a lack of precise knowledge about the nature of the matter in issue. That disadvantage is exacerbated in a review of a decision relying on section 35. The review must largely proceed in private between the Information Commissioner and the agency. 
The Information Commissioner will ordinarily call for, and examine documents where they do exist, and debate the merits of the claims for exemption with the agency. If the requested document does not exist, the debate will be over the merits of a claim for exemption of a notional document of the kind to which the applicant requested. The procedures adopted regarding the applicant should, so far as practical, not be varied according to whether a requested documents does or does not exist, as that may in effect give information as to the existence or non-existence of a document. 
The applicant must necessarily be limited to submitting evidence or arguments based on what the applicant knows or believes about the requested documents, and in response to information provided by the agency, eg reasons for decision, any evidence or submissions filed by the agency which do not disclose the existence or non-existence of a document.
The agency’s submissions and evidence must be given in private where it is not practicable to provide the information without disclosing the existence or nonexistence of a document. 
The applicant sought access to documents that post-dated the winding up of the Special Branch of the Queensland Police Service (QPS). QPS neither confirmed nor denied the existence of any document on the basis that the requested documents would, if they existed, contain matter that would be exempt under one or more of the provisions in section 42 of the FOI Act.
The Information Commissioner was satisfied that the relevant document, if it existed, would be exempt under section 42(1)(a)(b)(e) or (h) of the FOI Act on the basis that disclosure could reasonably be expected to:
- prejudice the investigation of a contravention or possible contravention of law;
- enable the identity of a confidential source of information to be ascertained;
- prejudice the effectiveness of a lawful method or procedure for preventing detecting, investigating or dealing with a contravention of the law; or
- prejudice a system or procedure for the protection of persons, property or the environment.
Accordingly, the Information Commissioner was satisfied QPS was entitled to neither confirm nor deny the existence of the requested documents under section 35 of the FOI Act.
The applicant sought access to documents detailing conditions imposed on a named health practitioner’s registration. The Office of the Health Practitioner Registration Board (OHPRB) neither confirmed nor denied the existence or nonexistence of the requested documents on the basis that the documents would, if they existed, be exempt under section 42 of the FOI Act.
The Information Commissioner was satisfied OHPRB was entitled to neither confirm nor deny the existence or nonexistence of documents under section 35 of the FOI Act because if the documents sought did exist they would contain matter that would be exempt under section 42 of the FOI Act.
Last updated: March 1, 2012